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High Court of Australia |
KOOP v. BEBB [1951] HCA 77; (1951) 84 CLR 629
Private International Law - Evidence
High Court of Australia
Dixon(1), McTiernan(2), Williams(1), Fullagar(1) and Kitto(1) JJ.
CATCHWORDS
Private International Law - Tort - Negligence - Fatal accident - Statute - Territorial limitation - Injury caused by negligent act in New South Wales - Death resulting in Victoria - Right of action in Victoria by dependants of deceased - Wrongs Act 1928 (No. 3807) (Vict.), Part III. - Compensation to Relatives Act, 1897- 1946 (N.S.W.) (No. 31 of 1897 - No. 23 of 1946).Evidence - Action in Victoria in respect of tort committed in New South Wales - Proof of New South Wales law - Pleading - Statement of claim - Whether cause of action disclosed - New South Wales law not pleaded as fact - Judicial notice - State and Territorial Laws and Records Recognition Act 1901-1950 (No. 5 of 1901 - No. 80 of 1950), s. 3.
HEARING
Melbourne, 1951, October 12, 15, 16; December 20. 20:12:1951DECISION
December 20.2. The defendant apparently resides in New South Wales. It does not appear whether the writ in this action was served upon him in Victoria, but he entered an appearance in the action and by so doing he submitted to the jurisdiction of the court. He filed a defence putting in issue the allegation of negligence and certain other allegations in the statement of claim, and setting up that the intersection of the Tocumwal-Barooga Road and the Mulwala Road is in the State of New South Wales, and that if he was negligent his negligence took place in New South Wales. He objected, as a matter of law, that in these circumstances the facts alleged in the statement of claim did not constitute any cause of action by the plaintiffs against him which is recognized by or enforceable in or within the jurisdiction of the Supreme Court of Victoria. (at p639)
3. The points of law raised by this objection were ordered to be set down for hearing and disposed of before the trial of the issues of fact, and they were argued before Dean J. His Honour held that the objection was a complete answer to the action so far as relief was claimed by both plaintiffs in respect of the death of their father, and he made an order dismissing the action to that extent. From that order the plaintiffs appeal to this Court. (at p639)
4. The plaintiffs rely upon Part III. of the Wrongs Act 1928 (Vict.), which
in substance repeats the provisions enacted in England
by Lord Campbell's Act
(9 & 10 Vict. c. 93). The leading provision is contained in s. 15, which is in
the following terms:-
"15. Whensoever the death of a person is caused by a wrongful act neglect or
default and the act neglect or default is such as
would (if death had not
ensued) have entitled the party injured to maintain an action and recover
damages in respect thereof, then
and in every such case the person who would
have been liable if death had not ensued shall be liable to an action for
damages notwithstanding
the death of the person injured and although the death
has been caused under such circumstances as amount in law to felony". (at
p639)
5. Every such action is to be for the benefit of the wife, husband, parent and child of the person whose death has been so caused; such damages may be given as the jury or the court think proportional to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought; and the amount so recovered after deducting the costs not recovered from the defendant is to be divided amongst the before-mentioned parties in such shares as the jury or the court by their or its verdict find and direct (s. 16). The action is to be brought in the name of the executor or administrator of the person deceased (s. 16); but where there is no executor or administrator, or no action is brought by the executor or administrator within six months after the death, it may be brought by all or any of the persons for whose benefit such action would have been (s. 17). (at p639)
6. The question raised by the defendant's objection and answered in his favour by the learned Judge below is whether, having regard to these provisions, the children of a person whose death resulted from an act of negligence committed in New South Wales can maintain an action in Victoria for damages against the wrongdoer. His Honour observed that, read literally, s. 15 is free of all territorial limitation; and, because the Victorian Parliament has power, under s. I. of the Constitution Act (Schedule (I.) of the Imperial Act 18 & 19 Vict. c. 55), to make laws "in and for Victoria" only, his Honour treated the question before him as depending for its answer upon the selection of an appropriate point at which to read into the section the words "within Victoria". His Honour considered that three choices were open to him, namely, to insert the restrictive words either after "the death of a person", or after "maintain an action", or after "a wrongful act neglect or default"; and he decided in favour of the last after weighing the consequences which would flow from the adoption of each, and considering which of them was the most likely to have been intended by the legislature. (at p640)
7. It is true that Part III. contains no words expressly confining its operation to Victoria, and it is also true that its provisions cannot operate, and should not be construed as operating, beyond the borders of the State. But it does not follow that restrictive words should be imported by implication into the text of the section. It is sometimes necessary to imply such words into an enactment passed by a Parliament whose powers are defined by reference to area, in order that the seeming generality of its terms may not lead to the conclusion that the enactment is invalid as being in excess of power. The enactment considered by the Privy Council in Macleod v. Attorney-General (N.S.W.) (1891) AC 455 is a familiar example. In such cases the warrant for the implication lies in the presumption that the Parliament intended not to overpass the limits of its authority. In a second class of enactments effect may be given to a restriction which, though unexpressed, exists by necessary implication from the apparent object of the enactment itself. Thus in Mynott v. Barnard [1939] HCA 13; (1939) 62 CLR 68 the Workers' Compensation Act 1928 (Vict.) was held to apply only (according to one view) in respect of personal injury by accident in Victoria arising out of and in the course of employment, or (according to another view) in respect of personal injury by accident arising out of and in the course of employment in Victoria. Part III. of the Wrongs Act, however, belongs to neither of these categories. There is no need to imply words into s. 15 in order that its operation may not transcend the limits of legislative power or fail to conform to the apparent object of the legislation. The connection of its operation with the State of Victoria is inherent in its nature; for, taken as it stands, it purports only to enact a rule to form part of the general body of the law of Victoria relating to civil liability for wrongful acts, neglects and defaults: cf. Washington v. The Commonwealth (1939) 39 SR (NSW) 133, at p 139; 56 WN 60, at p 61 . (at p641)
8. The legislation produces the same effect upon the law of Victoria as its prototype produced upon the law of England. In each country the principles of the common law gave a remedy in damages in respect of wrongful acts, neglects and defaults causing damage; but those principles had no application where the damage flowed from the death of a human being. Lord Campbell's Act described in a recital the situation to which it was addressed: "Whereas no Action by Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person, and it is oftentimes right and expedient that the Wrongdoer in such Case should be answerable in Damages for the Injury so caused by him." The mischief of the Act was thus revealed as a lacuna in the law of liability for wrongs. As Lord Sumner pointed out in Admiralty Commissioners v. S.S. Amerika (1917) AC 38, at pp 51, 52 , Scotland was excluded from the operation of the Act because the lacuna did not exist in Scottish law. Existing in the common law, it was filled for England by Lord Campbell's Act, and it was filled for Victoria by the provisions now contained in Part III. of the Wrongs Act, by creating in favour of certain relatives of the deceased person a right to complain of his death as an injury to themselves: cf. Woolworths Ltd. v. Crotty (1942) [1942] HCA 35; 66 CLR 603, at pp 611 618 . (at p641)
9. Section 15 should therefore be considered as enacting a rule of the law of Victoria, to be applied in the Victorian courts, and to be applied as it stands, without textual emendation. Its effect in relation to a case which includes an extra-Victorian element depends upon the application of the rules of private international law which form part of the law in Victoria. The section may be considered as simply creating an addition to the category of actionable wrongs by reference to which, in a case involving a foreign element, the rules of private international law give a right of action in Victoria in conditions which they define. Alternatively the section may be regarded as giving a right of action in Victoria whenever the condition is fulfilled that the deceased person (if he had survived) would have been entitled by the law of Victoria, including its rules of private international law, to recover damages for the act, neglect, or default which caused his death. If the first view be accepted, the question in the present case is whether the rules of Victorian private international law operate to give the plaintiffs a right of action against the defendant in Victoria, having regard to the fact that they would have had a right of action against him under Part III. of the Wrongs Act if his negligence had been committed in Victoria. On the other hand, if the second view be accepted, the question is only whether the rules of private international law would have given the plaintiffs' father, if he had survived, a right of action in Victoria against the defendant for his negligence committed in New South Wales. (at p642)
10. Whichever of these views be adopted, it is necessary to ascertain the rule of private international law which defines the conditions of civil liability in Victoria for an act done in New South Wales. In the present state of authority it must be accepted that an action of tort will lie in one State for a wrong alleged to have been committed in another State, if two conditions are fulfilled: first, the wrong must be of such a character that it would have been actionable if it had been committed in the State in which the action is brought; and secondly, it must not have been justifiable by the law of the State where it was done: Walpole v. Canadian Northern Railway Co. (1923) AC 113, at p 119 ; McMillan v. Canadian Northern Railway Co. (1923) AC 120, at pp 123, 124 . (at p642)
11. The language in which these conditions are expressed is that of Willes J. in Phillips v. Eyre (1870) LR 6 QB 1, at pp 28, 29 . For his statement of the first condition, his Lordship relied upon the decision in Liverpool, Brazil, and River Plate Steam Navigation Co. Ltd. v. Benham ("The Halley") (1868) LR 2 PC 193 , although (it may be remarked) in that case the Privy Council decided that the defendant was not liable in England for an act done abroad by another person, not because of the character of the act according to English law, but because the person who did it was not one for whose defaults the defendant was responsible according to English law. At least the first condition is free from ambiguity. The second is not. It was interpreted by a Court of Appeal consisting of Lopes and Rigby L.JJ. in Machado v. Fontes (1897) 2 QB 231 as meaning that the act complained of must not have been "innocent" in the country where it was done. Their Lordships held that if the act was contrary in any respect to the law of that country, then, although it gave rise to no civil liability there, it was not "justifiable" there, and the second condition was therefore fulfilled. No previous decision had gone so far. The statement that the act must not have been justifiable by the law of the place where it was done was framed by Willes J. for the purposes of a judgment directed to the effect to be conceded in an action in England to a statute of indemnity, which had been passed in the country where the act was committed and which had the effect of curing retrospectively the wrongfulness of the act in that country. The statement of the condition does not in terms deny that the act complained of must be of a character which attracts civil liability in the country where it was done; and it would be difficult to reconcile such a denial with the principle which Willes J. had previously stated (1870) LR 6 QB, at p 28 , that "the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law". The learned Lords Justices in Machado v. Fontes (1897) 2 QB 231 relied also upon the judgments in "The M. Moxham" (1876) 1 PD 107 , which was the converse of "The Halley" (1868) LR 2 PC 193 , in the sense that the question was whether liability for an act of negligence in another country could be imposed in England upon a person who, according to the law of that other country, was not responsible for the fault of the person who did the act, and it was decided that it could not. The judgments fall short of supporting the doctrine of Machado v. Fontes (1897) 2 QB 231 . That case has been dissented from in Naftalin v. London Midland and Scottish Railway Co. [1933] ScotCS CSIH_1; (1933) SC 259, at pp 274, 275 , and has been much criticized by text writers. (See further, M'Elroy v. M'Allister [1948] ScotCS CSIH_4; (1949) SC 110 .) Its correctness was questioned and left undecided by the Privy Council in Canadian Pacific Railway Co. v. Parent (1917) AC 195, at p 205 . In the judgment of Cussen J. in Varawa v. Howard Smith Co. Ltd. (No. 2) (1910) VLR 509 will be found a critical analysis of the case and of the authorities which it purported to apply. It seems clear that the last word has not been said on the subject, and it may be the true view that an act done in another country should be held to be an actionable wrong in Victoria if, first, it was of such a character that it would have been actionable if it had been committed in Victoria, and, secondly, it was such as to give rise to a civil liability by the law of the place where it was done. Such a rule would appear to be consonant with all the English decisions before Machado v. Fontes (1897) 2 QB 231 and with the later Privy Council decisions. It may be added that, however the rule should be stated, courts applying the English rules of private international law do not accept the theory propounded by Holmes J. in Slater v. Mexican National Railroad Co. [1904] USSC 100; (1904) 194 US 120 (48 Law Ed 900) (see also New York Central Railroad Co. v. Chisholm [1925] USSC 109; (1925) 268 US 29, at p 32 [1925] USSC 109; (69 Law Ed 828, at p 832) ), when he said:- "The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligatio, which, like other obligations, follows the person, and may be enforced wherever the person may be found . . . But as the only source of this obligation is the law of the place of the act, it follows that that law determines not merely the existence of the obligation, . . . but equally determines its extent." English law as the lex fori enforces an obligation of its own creation in respect of an act done in another country which would be a tort if done in England, but refrains from doing so unless the act has a particular character according to the lex loci actus. Uncertainty exists only as to what that character must be. (at p644)
12. There is no necessity to express a concluded opinion upon the controversy which surrounds Machado v. Fontes (1897) 2 QB 231 . It is enough that, on any view, an act, which would have been actionable in Victoria if committed there, is actionable in Victoria though committed in New South Wales if it is actionable in New South Wales. If the defendant in this case is guilty of the negligence alleged against him, his negligence was, when the action was commenced, actionable in New South Wales at the suit of the plaintiffs, and would have been actionable in New South Wales at the suit of their father if he had survived. This is so because the law of New South Wales includes both the Compensation to Relatives Act, 1897-1946, which enacts provisions not differing in any relevant respect from those of Part III. of the Victorian Wrongs Act, and also the rules of the common law with respect to liability for negligence. The plaintiffs are therefore entitled to maintain their present action, either because the coexistence of Part III. of the Wrongs Act and the Compensation to Relatives Act (N.S.W.) gives them under the rule of private international law above discussed, a right of action against the defendants for causing the death of their father by negligence in New South Wales, or because Part III. of the Wrongs Act applies to this case of its own force, the condition that their father would have been entitled to sue the defendant in Victoria for injuring him by negligence in New South Wales being satisfied by the application of the same rule of private international law. (at p644)
13. One matter remains to be mentioned. It was objected on behalf of the defendant that it is not open to the plaintiffs to rely for any purpose upon New South Wales law, because the content of that law is in Victoria a question of fact and the statement of claim contains no allegation as to the law of New South Wales. This objection should not be sustained. The Supreme Court of Victoria takes judicial notice of the provision made by the Imperial Act, 9 Geo. IV. c. 83, s. 24, whereby all laws and statutes in force in England at the time of the passing of that Act (1828) were made applicable in the administration of justice in the courts of New South Wales so far as the same could be applied within that colony. The Victorian court also takes judicial notice of all statutes of New South Wales, being required so to do by s. 3 of the State and Territorial Laws and Records Recognition Act 1901-1950: cf. s. 70 of the Evidence Act 1928 (Vict.). It is therefore within its judicial cognizance that the Compensation to Relatives Act of New South Wales entitled the plaintiffs to sue in that State for damages in respect of the death of their father, and also that, by the principles of the common law, applicable in New South Wales under 9 Geo. IV. c. 83 and unaffected by statutes enacted in that State since 1828, the conduct of the defendant alleged in the statement of claim amounted to a wrong which would have been actionable in New South Wales at the suit of the plaintiffs' father if he had survived. (at p645)
14. The appeal should therefore be allowed, the order appealed from should be discharged, and in lieu thereof it should be declared that the allegations contained in pars. 1 to 6 inclusive of the statement of claim disclose a cause of action by the plaintiffs against the defendant. (at p645)
McTIERNAN J. This action was brought in the Supreme Court of Victoria. It consisted of two counts. The first was a claim for compensation for the pecuniary loss suffered by the plaintiffs in consequence of their father's death, which they alleged was caused by the defendant's negligence. The second count was for damages for physical injury and damage sustained by one of the plaintiffs in consequence of the same negligence. This appeal is concerned only with the first count. The question is whether or not that claim can be enforced by an action brought in the Supreme Court of Victoria. It appeared that the alleged negligence took place on 3rd September 1949 in New South Wales and caused physical injury to the plaintiff's father, from which he died in Victoria on 7th September 1949. No executor or administrator of his estate was appointed. The plaintiffs, a daughter and a son, brought the action for their own benefit: being infants, they sued by their next friend. The first count is contained in pars. 1 to 6 inclusive of the statement of claim and the second count in the seventh paragraph. To the first count there are appended (citing the words which describe them): "Particulars under the Wrongs Act 1928". This heading refers to Part III. of the Wrongs Act 1928 (Vict.). This part of the Act follows the pattern of Lord Campbell's Act (Imp.) (9 & 10 Vict. c. 93). Section 15, which is in Part III., creates a right of action for a wrongful act, neglect or default causing death, subject to the conditions which are usual in legislation of which Lord Campbell's Act is the model. (at p646)
2. The defendant set up as a defence to the claim set forth in pars. 1 to 6 inclusive of the statement of claim the fact that the alleged negligence took place in New South Wales. Upon that the defendant submitted that as a matter of law the facts alleged in those paragraphs do not constitute any cause of action under the Wrongs Act of Victoria or any cause of action enforceable in the Supreme Court of Victoria. In an interlocutory proceeding Dean J. upheld this submission and gave judgment dismissing the cause of action set forth in pars. 1 to 6 inclusive of the statement of claim. (at p646)
3. In s. 15 of the Wrongs Act the legislature has used the general words "a wrongful act neglect or default". Literally, these words apply to an act neglect or default which falls within the scope of the words of the section, wherever it was committed. Read without any limitation, the effect of the section is to create a civil liability for such an act neglect or default whether it was committed in Victoria or in another part of Australia or in any other place. James L.J. said in Niboyet v. Niboyet (1878) 4 PD 1, at p 7 : "It is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State". This rule of construction was applied in Barcelo v. Electrolytic Zinc Co. of Australasia Ltd. [1932] HCA 52; (1932) 48 CLR 391, at pp 423, 425, 443-447 . Dixon J. said (1932) 48 CLR, at p 423 that the object of this rule of construction is to confine the operation of general language in a statute to a subject matter "under the effective control of the legislature". Turner L.J. said in Cope v. Doherty [1858] EngR 843; (1858) 2 De G & J 614, at pp 623, 624 (44 ER 1127, at p 1131) : "It is not because general words are used in an Act of Parliament every case which falls within the words is to be governed by the Act. It is the duty of the Courts of Justice so to construe the words as to carry into effect the meaning and intention of the Legislature". The legislature did not expressly declare that it was dealing with wrongful acts, neglects, or defaults, whether they took place within or beyond Victoria. The proper construction to place upon s. 15 is that Parliament intended to deal only with such persons or things as are within the general words of the section and also "within its proper justification" (Colquhoun v. Heddon (1890) 25 QBD 129, at pp 134, 135 , per Lord Esher). It is clearly within the proper jurisdiction of the legislature to impose civil liability for a wrongful act, neglect or default having the consequences described in s. 15, if it takes place in Victoria. As regards any extra-territorial wrongful act, neglect or default falling within the general words of the section, it is difficult to affirm that it is a thing within the "proper" jurisdiction of the legislature of Victoria. The legislature has no power to make its laws apply extra-territorially but the present question is not strictly one as to the extent of its legislative jurisdiction: it is rather whether the Court ought to attribute to the legislature the intention that the general words should apply to an extra-territorial wrongful act, neglect or default. A matter which is of importance is that the legislature contemplated that a wrongful act, neglect or default which falls within the general words of s. 15 may be a felony. The section expressly says that a right of action is created in respect of such a wrongful act, neglect or default, even although the death has been caused under such circumstances as amount to a felony. Locality is an appropriate criterion having regard to the subject matter, for limiting the general words "a wrongful act, neglect or default" in s. 15. See American Banana Co. v. United Fruit Co. [1909] USSC 106; (1909) 213 US 347, at p 356 (53 Law Ed 827, at p 832) ; New York Central Railroad Company v. Chisolm [1925] USSC 109; (1925) 268 US 29, at pp 31, 32 [1925] USSC 109; (69 Law Ed 828, at pp 831, 832) . In my opinion the intention ought not to be attributed to the legislature of dealing with extra-territorial wrongful acts, neglects or defaults. Upon the true construction of s. 15 it is, in my opinion, limited to a wrongful act, neglect or default which is committed in Victoria. The negligence alleged in the statement of claim took place in New South Wales. It follows that the cause of action set forth in pars. 1 to 6 inclusive cannot stand upon Part III. of the Wrongs Act 1928 of Victoria. (at p647)
4. The Compensation to Relatives Act, 1897-1946 (N.S.W.) is, essentially similar to Part III. of the above-mentioned Wrongs Act. Section 3 of the Compensation to Relatives Act applies to the negligence alleged in the present case because it was a wrongful act, neglect or default which took place in New South Wales. The death of the plaintiffs' father, however, occurred in Victoria. In the case of the Compensation to Relatives Act of New South Wales the death of the injured person is essential to give the right of action created by the Act. This element is common, of course, to all Acts based upon the pattern of Lord Campbell's Act. It has been held that under such provisions the relatives of the injured man would have no cause of action, if before his death from the injury caused by a wrongful act, neglect or default, he had sued the tortfeasor and recovered damages. This result followed because the statutory right of action created by the Act is to an extent identified with the common-law right which accrued to the injured person upon the happening of the wrongful act, neglect or default (Read v. Great Eastern Railway Co. (1868) LR 3 QB 555 ; Griffiths v. Earl of Dudley (1882) 9 QBD 357 ). The statutory right of action given to the relatives is nevertheless a "new action" (Seward v. Owners of the "Vera Cruz" (1884) 10 App Cas 59 ). It is an action for the wrong for which the injured person could have brought an action against the wrongdoer, had the wrong not caused death. The plaintiffs' father could have brought an action for the negligence alleged in the statement of claim if he had survived; upon his death another right of action for compensation for the pecuniary loss accrued under the Compensation to Relatives Act of New South Wales to the plaintiff's dependent children. Du Parcq L.J. said in George Monro Ltd. v. American Cyanamid & Chemical Corporation (1944) KB 432, at p 441 : "The question is: Where was the wrongful act, from which the damage flows, in fact done? The question is not where was the damage suffered, even though damage may be of the gist of the action". In the present case the locus delicti commissi was in New South Wales. The plaintiffs could, within twelve months from the death of their father, the period limited by s. 5 of the Compensation to Relatives Act, have brought an action under that Act in the Supreme Court of New South Wales. As there is no executor or administrator of their father, the plaintiffs would have been entitled under s. 6B to bring the action within the abovementioned period, but as that period has elapsed the plaintiffs would be met by s. 5 if they sued in the Supreme Court of New South Wales under the Compensation to Relatives Act of that State. (at p648)
5. The right of action given by this Act to the relatives of the deceased is statutory, but it is a right to bring an action of tort. The action is essentially different from a claim under a Workers' Compensation Act; such a claim does not "properly arise ex delicto": Dicey's Conflict of Laws, 6th ed. (1949), at p. 801. Mynott v. Barnard [1939] HCA 13; (1939) 62 CLR 68 , a case involving the construction of the Workers' Compensation Act 1928 (Vict.) is not parallel with the present case. An Act of the type of the Compensation to Relatives Act of New South Wales or of Part III. of the Wrongs Act of Victoria or any Act fashioned after Lord Campbell's Act makes "a statutory addition" to the common law of the State which enacts such an Act. In Davidson v. Hill (1901) 2 KB 606, at p 609 an action under the Fatal Accidents Act (Lord Campbell's Act) was described by Kennedy J. as "an action in tort". Phillimore J. said (1901) 2 KB, at p 619 : "The Fatal Accidents Act is a statutory addition to the common law of England". Kennedy J. made in the last-mentioned case this observation (1901) 2 KB, at p 614 : "The basis of the claim to which they" (the Fatal Accidents Act) "give statutory authority is negligence causing injury, and that is a wrong which I believe the law of every civilized country treats as an actionable wrong . . . the purpose and effect of the legislation is to extend the area of reparation for a wrong which civilized nations treat as an actionable wrong". The negligence alleged in the statement of claim was actionable by the law of Victoria, where the action was brought, and by the law of New South Wales, where it was committed. It is a clear case of a tort committed beyond the territorial jurisdiction of the Supreme Court of Victoria for which an action may be brought in that court. The Compensation to Relatives Act of New South Wales created the civil liability for the negligence because it was committed in New South Wales. The remedy is statutory and, as the locus delicti commissi was New South Wales, the action which could be brought in Victoria was under the Compensation to Relatives Act, not under Part III. of the Wrongs Act: see New York Central Railroad Co. v. Chisholm [1925] USSC 109; (1925) 268 US 29 (69 Law Ed 828) . The action is accessory to the civil liability created by the Compensation to Relatives Act of New South Wales. Willes J. said in Phillips v. Eyre (1870) LR 6 QB 1, at p 28 : "A right of action, whether it arise from contract governed by the law of the place or wrong, is equally the creature of the law of the place and subordinate thereto . . . in like manner the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law". Section 5 of the Compensation to Relatives Act bars the right of action given by this Act unless the action is commenced within twelve months after the death in respect of which it is given. It follows that the plaintiffs have lost their right of action under the Compensation to Relatives Act of New South Wales if the action which they brought in the Supreme Court of Victoria cannot be treated as an action under the Compensation to Relatives Act of New South Wales. Section 6 of this Act and s. 20 of the Wrongs Act provide for the delivery of particulars with the statement of claim (which in the former case is a "declaration") of the persons for whom the action is brought and of the nature of the claim in respect of which damages are claimed. In the present case the plaintiffs entitled the particulars "Under the Wrongs Act". Part III. does not require that the particulars should be so entitled. The heading "Under the Wrongs Act" distinguished the particulars under pars. 1 to 6 of the statement of claim, from the particulars under the count for damages, which it also contains, for the physical injury and damage alleged to have been caused to one of the plaintiffs. The proof, which was given in the interlocutory proceeding, that the negligence was committed in New South Wales stamps the action as one which is authorized by the Compensation to Relatives Act of New South Wales. The heading "Under the Wrongs Act" is not an essential part of the statement of claim. It is a false description of the Act which sanctioned the action and directed the particulars to be furnished. Having regard to the substance of the matters pleaded in pars. 1 to 6 and the substance of the particulars referring to those paragraphs, I am not prepared to decide that the plaintiffs did not, in accordance with s. 5 of the Compensation to Relatives Act, 1897-1946, of New South Wales, take proceedings within twelve months of their father's death to enforce the right of action which arose under that Act upon his death. (at p650)
6. The Supreme Court of Victoria is bound by the Federal Act, the State and Territorial Laws and Records Recognition Act 1901-1950, s. 3, to take judicial notice of the Compensation to Relatives Act, 1897-1946, of New South Wales. This Act is the correct law for the Supreme Court of Victoria to apply in so far as it governs the civil liability which the plaintiffs brought this action to enforce: but the law of the forum governs all matters of procedure in connection with the action. (at p650)
7. The defence set up by the defendant that pars. 1 to 6 inclusive do not plead a cause of action which is enforceable in the Supreme Court of Victoria should not, in my opinion, be sustained. (at p650)
8. Litigation involving questions like those in this appeal may increase with the growth of travel between the States and the Territories of the Commonwealth. It seems desirable for the States and the Commonwealth to take any action which is within their constitutional powers to prevent the recurrence of like questions in such litigation. (at p651)
9. I should allow the appeal. (at p651)
ORDER
Appeal allowed with costs.Order of the Supreme Court dated 11th May 1951 discharged. In lieu thereof declare that the allegations contained in pars. 1 to 6 inclusive of the statement of claim disclose a cause of action by the plaintiffs against the defendant and that the costs of the argument of the points of law which the order of the Supreme Court dated 15th March 1951 directed to be set down to be argued be paid by the defendant (the respondent in this Court).
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